Frank v. Superior Court

• Citation: 770 P.2d 1119,48 Cal.3d 632,257 Cal.Rptr. 550
• Decision Date: 20 April 1989
• Docket Number: No. S001963,S001963
• Court: United States State Supreme Court (California)
• Parties: , 770 P.2d 1119 Kenneth FRANK, Petitioner, v. The SUPERIOR COURT of Kern County, Respondent; The PEOPLE, Real Party in Interest.

Page 550

257 Cal.Rptr. 550

48 Cal.3d 632, 770 P.2d 1119

Kenneth FRANK, Petitioner, v. The SUPERIOR COURT of Kern County, Respondent The PEOPLE, Real Party in Interest.

No. S001963.

Supreme Court of California,

In Bank.

April 20, 1989.

Rehearing Denied June 1, 1989.

Stanley Simrin, and Simrin & Moloughney, Bakersfield, for petitioner.

John M. Sink, Santa Barbara, as amicus curiae on behalf of petitioner.

No appearance for respondent.

John K. Van de Kamp, Atty. Gen., Steve White, Asst. Atty. Gen., J. Robert Jibson, Roger Venturi, Gary A. Binkerd, Robert R. Anderson, Edgar A. Kerry, Anthony L. Dicce and Gelacio L. Bayani, Deputy Attys. Gen., Sacramento, for real party in interest.

John J. Meehan, Dist. Atty., Alameda, Thomas J. Orloff and William M. Baldwin, Asst. Dist. Attys., Cheryl M. Poncini, Deputy

Dist. Atty., Kent S. Scheidegger and [770 P.2d 1120] Charles L. Hobson, as amici curiae on behalf of real party in interest.

PANELLI, Justice.

The Court of Appeal, by peremptory writ, directs the trial court to grant petitioner's motion to sever trial on two rape counts. We reverse.

An information filed in the Kern County Superior Court charges petitioner Dr. Kenneth Frank (hereafter Frank) in two counts of rape under Penal Code section 261, subdivision (3). ¹ Frank is accused of raping two victims on separate occasions by luring them to his apartment, causing them to drink coffee laced with a drug, and having intercourse with them during the hours they were drugged. He admits having intercourse with the women, denies any use of drugs, and claims they freely consented to intercourse.

Frank moved for severance of trial on the counts. (Pen.Code, § 954.) ² The trial court denied the motion, and the Court of Appeal denied Frank's petition for writ of prohibition and/or mandate. We granted review and transferred the cause to the Court of Appeal with directions to issue an alternative writ.

Thereafter, applying the severance analysis set out in People v. Smallwood (1986) 42 Cal.3d 415, 424-433, 228 Cal.Rptr. 913, 722 P.2d 197, the appellate court issued a peremptory writ of mandate, directing the trial court to sever the rape counts. The court first determined that our holding in People v. Tassell (1984) 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1 compelled the conclusion that the proffered evidence for each count would not be admissible in the trial on the other count if it were separately tried. The court also concluded that defendant was prejudiced by the joinder of the two offenses. We granted the Attorney General's petition for review.

The Court of Appeal "reluctantly" concluded that it was compelled by Tassell, supra, 36 Cal.3d 77, 201 Cal.Rptr. 567, 679 P.2d 1, to order severance, and it suggested that this is an appropriate case for reconsideration of that holding. We reject the suggestion. Tassell and the decisions discussed therein did not involve a trial court's discretion on motion to sever charged offenses. In our view, therefore, any reconsideration of Tassell, if deemed warranted, should await a more appropriate vehicle--specifically, a case involving, as did Tassell, the admissibility at trial of other, uncharged offenses.

Our concern here is the reliance by the Court of Appeal on People v. Smallwood, supra, 42 Cal.3d 415, 425, 429, 228 Cal.Rptr. 913, 722 P.2d 197, insofar as that case may misplace the burden to show potential prejudice. As we stated in People v. Bean (1988) 46 Cal.3d 919, 939, footnote 8, 251 Cal.Rptr. 467, 760 P.2d 996, "Misleading language in [Smallwood ] ... implies that because prejudice is always presumed when offenses are joined and the evidence is not cross-admissible, the People must establish that the noncross-admissible evidence cannot reasonably affect the verdicts. As this court recognized in Williams v. Superior Court, supra [1984], 36 Cal.3d 441, 452 [204 Cal.Rptr. 700, 683 P.2d 699], and has since reaffirmed in Ruiz [People v. Ruiz (1988) 44 Cal.3d 589, 244 Cal.Rptr. 200, 749 P.2d 854] and Balderas [People v. Balderas (1985) 41 Cal.3d 144, 222 Cal.Rptr. 184, 711 P.2d 480], when the question is not admission of evidence of an uncharged offense, but whether severance of charged offenses should be ordered, the Applying general principles of law applicable to the severance of counts and recognizing that it is the burden of the defendant to clearly show potential prejudice in the joinder (see Bean, supra, 46 Cal.3d 919, 939, 251 Cal.Rptr. 467, 760 P.2d 996), we conclude that the trial court did not abuse its discretion in ruling against severance.

defendant carries the burden of clearly [770 P.2d 1121] showing potential prejudice. No abuse of discretion in denying severance will be found absent that showing in the trial court." (Emphasis added.)

FACTS

Since the relative strength of the two counts is a factor in severance, we set out a detailed statement of the facts. The transcript of the preliminary examination, the only evidentiary record before us, reveals the following:

Count 1. On Friday, February 7, 1986, Dr. Ilene P., a clinical psychologist and teacher at a local college, went to Todd's Bar. There she saw Frank whom she recognized as a physician she had met at a reception for a local judge and whom she had spoken to on business matters. She approached Frank, joined him, and had two drinks. When she declined his invitation to go to a movie, Frank decided to accompany her to temple. Frank then took Dr. P. to a meeting at the medical center where he worked. After dinner, Dr. P. accepted Frank's invitation to watch a video at his apartment but made it clear she was not interested in sex. They arrived at his apartment about 11:30 p.m.

Dr. P. declined Frank's offer of wine but accepted some Cafe Vienna. She expressed distaste at its sweetness. Frank twice urged her to drink the whole cup which she eventually did. Shortly thereafter, Dr. P. became very drowsy and fell asleep on the couch while watching the video. She remembered the two of them leaving his apartment about 1:30 a.m. but was not fully conscious until 6 p.m. on Saturday, when she was awakened by the ringing of the telephone and, to her surprise, found herself naked in bed with Frank. Frank left shortly thereafter and Dr. P., too groggy to work as planned, slept until 7 a.m. the next morning, Sunday.

Dr. P. cancelled a date for hiking with Frank but agreed to have breakfast with him and told him she suspected she had been drugged or gotten food poisoning. Throughout the day Dr. P. continued to feel tired, nauseous, and "headachy." In the late afternoon, Frank told her that they had had sexual relations and that he put a drug in her coffee thinking it would relax her.

The following morning, Dr. P. could not recall the name of the drug Frank had mentioned. She called his office; he told her it was Ativan. She submitted to a urine and blood test that afternoon; the test was negative for Ativan.

Dr. P. subsequently recalled several things that happened between 1:30 a.m. and 6 p.m. on Saturday: She recalled being in a shower with Frank and being in bed with him. She also remembered Frank lying on top of her with his penis in her vagina.

When police investigated Dr. P.'s complaint, Frank admitted being with her but denied any use of drugs. He admitted using Cafe Vienna with tranquilizers to quiet his dogs and put them to sleep. Cafe Vienna was seized from Frank's apartment with his consent, but tested negative for Ativan. There were no dogs in the apartment.

Count 2. On October 12, 1985, Ms. Beverly R., a student at San Joaquin Valley College, and a female friend went to a local bar for a glass of wine. About 2:20 a.m. they went to another bar where the friend introduced Ms. R. to Frank and his brother. Shortly thereafter Frank agreed to drive Ms. R. home but stopped first at his apartment "to get something." At Frank's suggestion, they smoked a pipeful of marijuana. When Ms. R. commenced coughing, Frank fixed her a drink that tasted like coffee but was very sweet and which he told her contained cognac.

A half hour later Ms. R. began to feel dizzy; she told Frank she was ill and wanted Ms. R. was shaken awake by Frank at 7 a.m. on October 14. She was in bed with him, naked; the sheets were covered with menstrual blood; she had vaginal pain; and semen was running down her legs. She was unable to recall anything that happened during the 27-hour period between the time she passed out and the time Frank awakened her.

to go home. Frank asked her how much [770 P.2d 1122] she weighed; she told [48 Cal.3d 638] him. Her vision became blurred and she fell over, striking her head on the arm of the couch. She felt herself being carried toward the bedroom. She then lost consciousness. It was about 4 a.m. on October 13.

Ms. R. asked Frank if they had had intercourse, and he told her that they had and that she enjoyed it. He said he had given her a drug called Ativan to put her mind to sleep.

A month after the incident, Ms. R. went to a doctor to make sure she did not have venereal disease but did not report the incident to police until three months after the incident because she was afraid of Frank. She testified that he had threatened her.

Ativan, the drug Frank told both victims they had ingested, is normally prescribed for anxiety or insomnia. A large dose can cause an extended period of unconsciousness. Alcohol adds to this effect. Ativan's half life in the human body is about 18 hours. A sensitive blood or urine test should be able to detect the residue from a large dose of Ativan taken two and a half days earlier.

The trial court denied Frank's motion to sever trial on the two counts, ruling that the offenses were cross-admissible and that there was no prejudice to Frank in the joinder. ³

DISCUSSION

Section 954 authorizes joinder of offenses of the same class. The two counts of rape are of the same class, and Frank concedes that the statutory requirements of joinder are satisfied in ...